Citizens United is Too Often Distorted in the Press

Newsweek recently published, “How Dark Money Boomeranged on the GOP,” by Kurt Eichenwald. The article, about Citizens United v. FEC’s purported effect on the Republican Party blatantly distorts nearly every aspect of the free-speech case.

Mr. Eichenwald’s second paragraph begins: “[T]he infamous Citizens United v. Federal Election Commission [decision], which declared that associations of people (read: rich folk and businesses) have free speech rights. . . ” Instead of “reading” Mr. Eichenwald’s august translation, perhaps the actual opinion should be read. Citizens United did not declare that associations of people have free speech rights. It reaffirmed this venerable legal principle, as the opinion recounts, for at least the 25th time. Even Justice Stevens’ dissent described corporate personhood as a “useful legal fiction.”

Mr. Eichenwald’s colloquial scoff about “rich folk and businesses” funding campaign groups is also bogus. According to Open Secrets, half of the top 12 organizations funding independent groups (including Super PACs) are unions: Carpenters and Joiners Union (#2); Laborers Union (#3); AFL-CIO (#5); National Education Association (#7); National Nurses United (#8); and Plumbers/Pipefitters Union (#12).

Mr. Eichenwald then jumps into faulty constitutional interpretation: “For a bunch of purported constitutional literalists, the decision was nonsense—the conservatives on the court granted First Amendment rights to corporations, a legal construct never mentioned by the Founding Fathers.”

Many groups aren’t mentioned in the Constitution, including media corporations like IBT Media, Newsweek’s owner, or political parties, which have always retained speech rights. More importantly, what the heck is a “constitutional literalist”? A Google search for this term returns one matching entry. It’s from “Connor’s Conundrum,” whose tagline is ‘Welcome to My Brain. Come, Have a Seat.” Perhaps Mr. Eichenwald meant “originalist,” “textualist,” or “strict constructionist,” which have distinct meanings.

To the extent Mr. Eichenwald’s fictional ‘term-of-artist’ would find primacy in the words of the First Amendment, let’s have a look. “Congress shall make no law . . . abridging the freedom of speech” connotes it protects speech not speakers. Well before Citizens United, the Supreme Court repeatedly recognized this maxim in cases like First National Bank v. Bellotti (1978) and Pacific Gas & Electric Co. v. Public Utilities Commission (1986): “The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

Mr. Eichenwald then trots out worn Citizens United refrains: “[The conservative justices] ‘discovered’ . . . that money is speech and corporations are people.” Let’s gander at ‘money is speech.’ Liberal First Amendment scholar Geoffrey Stone stabbed this kooky canard in 2012: “[N]ot a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech. It is simply not a persuasive or even coherent way to frame the issue. If it were, then the government could make it a crime for any person to use money to buy a book.”

And finally, most familiar: “[Citizens United] created a new political world. Billionaires and their companies could now anonymously dump unlimited cash into political organizations known as super PACs, 501(c)4s, and 527s. . .” Super PACS are PACs. PACs disclose their donors. Controversy exists about some trying to hide Super PAC donations through LLCs, but it is a tiny fraction of all donations, and they usually get unmasked anyway. In fairness, 527s could hide their donors – when Bill Clinton was president. Today, 527 donors must be publicly reported to the FEC (or state equivalents) or the IRS. Only 501(c)(4)s, which play a minor role in national elections can avoid donor disclosure, and such groups accounted for just over 3% of total federal campaign spending in the 2014 election cycle.

Mr. Eichenwald spins a morality tale about the Republican Party getting just desserts for pushing more political speech and recoiling from the result. Perhaps he is right that more political speakers tore apart the GOP, or perhaps the speech followed existing divisions that would inevitably find expression. And perhaps campaign finance laws themselves have truly harmed the parties as a new Brookings Institute report concludes. Perhaps the real morality tale is: hire a fact checker.

Paul H. Jossey is a campaign finance attorney and Adjunct Fellow at the Center for Competitive Politics.

The Center for Competitive Politics is now the Institute for Free Speech.